The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss benefits with respect to his accepted claim for an inhalation injury. A hearing was held on October 9, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits.

Decision

That the worker is entitled to wage loss benefits for February 2, 2013 only.

Decision: Unanimous

Background

The worker filed a claim with the WCB for an inhalation injury that occurred on February 1, 2013. The worker reported that they were using heaters and a hot plate to heat the cab of a locomotive as the cab heater was not working. He and a co-worker later began to cough and vomit and upon arriving at their destination they were taken to a hospital for treatment. The worker stated "we had carbon monoxide poisoning."

The employer's accident report indicated that the worker and his co-worker were experiencing difficulty breathing on February 2, 2013 and they were taken to a hospital for treatment. Both employees were examined and released. The employer noted that their employees were unsure as to the cause of their symptoms but had been burning a hot plate for extra heat in the cab. The employees did not see any visible smoke. The locomotive was inspected for exhaust leaks and none were found. The hot plate was also inspected with no defects noted. The employer was unable to determine why the crew felt ill. They noted that the worker provided a doctor's note to remain off work and his co-worker had returned to work.

When speaking with a WCB adjudicator on February 12, 2013, the worker stated:

• there was no heat coming from the cab blower. The temperature on February 1, 2013 was in the minus thirties. They turned on the side heaters as well as a hot plate to keep warm.
• at the start of his shift he felt fine and so did his co-worker. About six hours later he began to cough. He had to go outside to take care of an alarm and his condition got worse. By the time he got back into the cab his co-worker was throwing up. They both started to get nervous and then opened windows and doors to air out the cab. There was no smell of exhaust in the cab at any time.
• the worker believed that the exhaust in the cab was from the engine. He said that on cold days, the exhaust sinks and comes back into the locomotive.
• when they arrived at their destination, both he and his co-worker were in bad shape. An ambulance was called and they was taken to the hospital.

Medical information showed that the worker attended a medical facility on February 1, 2013 and a number of investigations were completed. The diagnosis was "inhalation ? CO" and the worker was released on February 2, 2013.

On February 11, 2013, the worker was seen by another physician with complaints of cough and weakness. The diagnosis was smoke inhalation. The physician reported that the worker could return to his regular duties on February 20, 2013 and that in the meantime he was not capable of alternate or modified duties.

On March 25, 2013, a WCB adjudicator advised the worker that he had reviewed the hospital reports and carbon monoxide exposure had not been confirmed. Based on the worker's symptoms and the symptoms experienced by his co-worker, the adjudicator was able to infer that there was a probable exposure of some kind on February 1, 2013. The adjudicator indicated that he also received a medical form from the attending physician at the hospital and the report said he could return to work on full duties with no restrictions. Therefore, the WCB would not pay for time loss as the worker was cleared to return to full duties the following day.

In a letter to the worker dated March 26, 2013, the adjudicator indicated that the WCB accepted his claim for an inhalation of an unknown substance with the accident date of February 1, 2013 but he was not entitled to wage loss benefits from February 2 to 19, 2013. The adjudicator noted that the hospital information speculated that the worker had suffered an exposure to carbon monoxide but they made no confirmation that this was the cause of his symptoms. The heaters and the hot plate used in the locomotive were electric and they could not produce carbon monoxide. The adjudicator also referred to the medical information completed on February 2, 2013 that the worker was fit to return to full duties without restriction as of February 2, 2013.

On April 7, 2013, the worker appealed the adjudicator's decision. The worker submitted that he was not fit to return to return to work by February 2, 2013 as he still required time to recover from his inhalation injury.

On April 16, 2013, information submitted by the employer was that there was no formal inspection report produced. The hot plate was melted due to the employees using it for a heat source and it was subsequently replaced. There were no further issues with the unit with respect to any fumes or exhaust.

On April 19, 2013, the employer's representative submitted that the employer supported the WCB decision to deny entitlement to wage loss benefits as the objective medical evidence suggested that the worker was fit for regular duties immediately following his examination on February 2, 2013. A copy of the employer's submission was provided to the worker for comment and the worker's response is on file dated May 1, 2013.

On May 8, 2013, Review Office determined that the worker was not entitled to wage loss benefits. Review Office stated that the medical information dated February 2, 2013 stated that the worker "feels back to normal" and that he had no shortness of breath or chest pain. The worker was discharged from the medical facility that morning. A form was completed which stated that the worker was fit for full duties with no limitations. The form was signed by the worker.

Review Office considered the worker's further medical treatment on February 11, 2013 and noted that no objective findings were recorded. Review Office said it placed little weight on the physician's note which authorized the worker to remain off work. On May 29, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

The worker and the employer provided further submissions to the Appeal Commission for consideration dated July 16, 2013 and October 2, 2013 respectively.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

The worker has an accepted claim. He is seeking wage loss benefits. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Worker's Position

The worker represented himself at the hearing. He described the events surrounding his claim.

The worker advised the panel that on February 1, 2013 he and a co-worker were taking a train to their usual destination. He said it was a very cold day and that the locomotive's cabin heater did not work so they used the 2 side heaters and a hot plate which was located on the conductor's desk. At about 50 miles from their destination, the train had to stop because another train was on the track. At this time, the worker started to cough and could not stop. At about 10 miles from their destination an alarm went off, which required that the worker leave the cabin to repair a car near the end of the train. He said the air was very cold and he found breathing difficult. He thought he might be having a heart attack. When he got back into the cabin, his co-worker was coughing and vomiting. They arrived at their destination and were taken to the local hospital by ambulance. He noted that several samples were taken and tests performed.

The worker said his co-worker, who was much younger, was released around midnight and he was held overnight and released on February 2, 2013 in the morning. He and his co-worker took a cab back to Winnipeg. He went to see his physician but as his physician was not available, he saw another physician at the same clinic who did not provide any advice. He saw his physician on February 11, 2013 and February 20, 2013. His physician authorized him to miss work.

The worker disputes that he had recovered by February 2, 2013 when he was released from the hospital. He said he felt physically weak, tired and was still coughing. He was given a puffer (inhaler) which he used for several days. He feels he was not fit to return to work until his physician advised him it was okay. He said it was necessary to "take care of myself." He expressed concern that the substance he inhaled has not been identified and may cause future health issues.

The worker told the panel that he does not recall signing a hospital form or reporting that he was back to normal. He said he did feel better when he was discharged because he was relieved that he did not have a heart attack.

Employer's Position

The employer was represented by an advocate and its Workers Compensation Claims Officer. The employer advocate advised that the employer agrees with the Review Office decision.

The representative noted that the claim has been accepted and acknowledged that the worker and co-worker became ill on the train on the February 1, 2013. She said that the issue is not acceptance but whether the worker suffered a loss of earning capacity as a result of the injury.

The representative said the evidence does not support a finding that the worker was medically unable to work after he was released from the hospital. She referred to the discharge form and other information from the hospital which indicated that the worker was fit to return to work. She also noted the worker's physician did not provide any findings to support his opinion that the worker should be off work.

The panel asked the employer's claims officer several questions regarding the inspection of the locomotive and hotplate and about the employer's records regarding the incident. The claims officer was not able to answer the questions. However, he acknowledged that the report on file pertaining to a hotplate, appears to be related to a different unit. He was not able to explain this.

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits.

For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker had a loss of earning capacity as a result of the workplace injury. For the reasons that follow, the panel finds that the worker is entitled to wage loss benefits for February 2, 2013 but not for the period after February 2, 2013.

In this case, the panel relies upon the best medical information available which is the information from the hospital where the worker and co-worker were admitted. This information does not identify the substance that the worker was exposed to but does address the worker's condition after the exposure. The panel notes that the hospital conducted an extensive series of tests to aid in assessing the worker's condition, including blood tests, EKGs, diagnostic imaging of the chest and physical examination. Based on results from these tests and observation of the worker, the treating physician concluded that the worker could resume his regular duties without limitations. The physician's notes indicate that the worker said he "feels back to normal" and had no shortness of breath or chest pain. It also indicates the worker was discharged to home with a prescription and told to return if there was an increase in shortness of breath/chest pain. This information does not support a finding that the worker was unable to work for three weeks.

The panel attaches little weight to the fact that the worker signed the WSIB Form 8. The panel accepts the worker's evidence that he did not recall signing this form and that he was tired and confused on the morning of February 2, 2013 when the form was signed. The panel does not accept the presence of the worker's signature as proof that the worker agreed with the contents of the form.

The panel finds that due to the worker's exhaustion and weakness on February 2, 2013 coupled with the instruction to seek medical assistance if the symptoms returned following his discharge, he was in a loss of earning capacity for the remainder of that day.

Although the worker's own physician authorized the worker to be off work, his reports do not identify symptoms or complaints made by the worker. The physician also does not provide findings in support of the opinion. The panel accordingly attaches little weigh to the physician's reports.

The panel further notes that the co-worker who was exposed to and inhaled the same substance was able to return to work 3 days after the incident on his next regularly scheduled shift. In the panel's view, this suggests that the ongoing effects of the workplace exposure were very limited in time.

In conclusion, the panel finds that the worker sustained a loss of earning capacity on February 2, 2013, as he was not discharged from the hospital until the morning of February 2, 2003, but not beyond that date, given our findings regarding the short term effects of the workplace exposures.

The worker's appeal is successful in part.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 16th day of October, 2013